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Case Id: ae949365-a5bc-4506-a4d5-81c6a0f39213Date: 23/12/2015 22:03:27
Regulatory environment for platforms, onlineintermediaries, data and cloud computing and thecollaborative economy
Fields marked with * are mandatory.
Objectives and General Information
The views expressed in this public consultation document may not be interpreted asstating an official position of the European Commission. All definitions provided in thisdocument are strictly for the purposes of this public consultation and are withoutprejudice to differing definitions the Commission may use under current or future EUlaw, including any revision of the definitions by the Commission concerning the samesubject matters.
You are invited to read the privacy statement attached to this consultation for information onhow your personal data and contribution will be dealt with.
This public consultation will close on 6 January 2016 (13 weeks from the day when alllanguage versions have been made available).
The Commission invites all interested parties to express their views on the questions targetingrelations between platform providers and holders of rights in digital content (Question startingwith "[A1]"), taking account of the Commission Communication "Towards a modern, moreEuropean copyright framework" of 9 December 2015. Technical features of the questionnairehave been adapted accordingly.
Please complete this section of the public consultation before moving to other sections.
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Respondents living with disabilities can request the questionnaire in .docx format and sendtheir replies in email to the following address:[email protected] you are an association representing several other organisations and intend to gather theviews of your members by circulating the questionnaire to them, please send us a requestin email and we will send you the questionnaire in .docx format. However, we ask you tointroduce the aggregated answers into EU Survey. In such cases we will not consideranswers submitted in other channels than EU Survey.If you want to submit position papers or other information in addition to the information youshare with the Commission in EU Survey, please send them [email protected] and make reference to the "CaseId" displayed after you have concluded the online questionnaire. This helps theCommission to properly identify your contribution.Given the volume of this consultation, you may wish to download a PDF version beforeresponding to the survey online. The PDF version includes all possible questions. Whenyou fill the survey in online, you will not see all of the questions; only those applicable toyour chosen respondent category and to other choices made when you answer previousquestions.
*Please indicate your role for the purpose of this consultationAn individual citizenAn association or trade organization representing consumersAn association or trade organization representing businessesAn association or trade organization representing civil societyAn online platformA business, including suppliers using an online platform to provide servicesA public authorityA research institution or Think tankOther
*Please indicate your country of residence
Non-EU country
*Please specify the Non-EU country
United States
*Please provide your contact information (name, address and e-mail address)
Public Knowledge
1818 N Street NW Suite 410
Washington, DC 20036
United States
Tel: +1-202-861-0020
Email: [email protected]
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* Is your organisation registered in the Transparency Register of the European Commission andthe European Parliament?Note: If you are not answering this questionnaire as an individual, please register in theTransparency Register. If your organisation/institution responds without being registered, theCommission will consider its input as that of an individual and will publish it as such.
YesNoNon-applicable
*Please indicate your organisation's registration number in the Transparency Register
191801220089-74
If you are an economic operator, please enter the NACE code, which best describes theeconomic activity you conduct. You can find here the NACE classification.
Text of 3 to 5 characters will be accepted The Statistical classification of economic activities in the European Community, abbreviated as NACE, is the classification
of economic activities in the European Union (EU).
* I object the publication of my personal dataYesNo
Online platforms
SOCIAL AND ECONOMIC ROLE OF ONLINE PLATFORMS
Do you agree with the definition of "Online" as provided below?platform
"Online platform" refers to an undertaking operating in two (or multi)-sided markets, which uses the Internet to enable
interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the
groups. Certain platforms also qualify as Intermediary service providers.
Typical examples include general internet search engines (e.g. Google, Bing), specialised search tools (e.g. Google
Shopping, Kelkoo, Twenga, Google Local, TripAdvisor, Yelp,), location-based business directories or some maps (e.g.
Google or Bing Maps), news aggregators (e.g. Google News), online market places (e.g. Amazon, eBay, Allegro,
Booking.com), audio-visual and music platforms (e.g. Deezer, Spotify, Netflix, Canal play, Apple TV), video sharing
platforms (e.g. YouTube, Dailymotion), payment systems (e.g. PayPal, Apple Pay), social networks (e.g. Facebook,
Linkedin, Twitter, Tuenti), app stores (e.g. Apple App Store, Google Play) or collaborative economy platforms (e.g. AirBnB,
Uber, Taskrabbit, Bla-bla car). Internet access providers fall outside the scope of this definition.
No
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*Please explain how you would change the definition1000 character(s) maximum
The proposed definition of "online platform" raises some concerns with
respect to limiting principles. For example, it is unclear how to
distinguish the examples cited by the question, from websites operated
by traditional businesses. It is also unclear what purpose defining
"online platform" serves from a regulatory perspective, as the
businesses identified in the example are already subject to a variety of
regulatory and oversight mechanisms, including consumer protection etc.
What do you consider to be the key advantages of using online platforms?
Online platforms…
make information more accessiblemake communication and interaction easierincrease choice of products and servicescreate more transparent prices and the possibility to compare offersincrease trust between peers by providing trust mechanisms (i.e. ratings, reviews, etc.)lower prices for products and serviceslower the cost of reaching customers for suppliershelp with matching supply and demandcreate new markets or business opportunitieshelp in complying with obligations in cross-border saleshelp to share resources and improve resource-allocationothers:
*Please specify:100 character(s) maximum
serve as a platform for enabling free speech and expression
Have you encountered, or are you aware of problems faced by or when dealing with online platforms?consumers suppliers
"Consumer" is any natural person using an online platform for purposes outside the person's trade, business, craft or
profession.
"Supplier" is any trader or non-professional individual that uses online platforms to provide services to third parties both
under their own brand (name) and under the platform's brand.
YesNoI don't know
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Please list the problems you encountered, or you are aware of, in the order of importance andprovide additional explanation where possible.3000 character(s) maximum
Consumers face a number of issues when dealing with online platforms:
*Consumer expression is subject to abusive takedowns. Recently a
consumer was banned from Facebook after being subject to abusive
takedown notices with respect to photos the consumer had taken and
uploaded of legally purchases Star Wars figurines.
http://arstechnica.com/tech-policy/2015/12/disney-initially-drops-then-d
oubles-down-on-dmca-claim-over-star-wars-figure-pic/
*Consumer expectations as to ownership of digital "goods" are sometimes
upended by online platforms. For example, customers who had purchased
ebook copies of the George Orwell novel 1984 discovered that the
platform from which they had purchased the ebook had remotely wiped all
copies of the ebook.
http://arstechnica.com/gadgets/2009/07/amazon-sold-pirated-books-raided-
some-kindles/
These examples are not exhaustive, but merely indicative of the issues
faced by consumers and users of online platforms. It's important to note
that many of these issues, including the two examples cited here are
driven by copyright law, and not necessarily by the online platform.
How could these problems be best addressed?market dynamicsregulatory measuresself-regulatory measuresa combination of the above
TRANSPARENCY OF ONLINE PLATFORMS
Do you think that online platforms should ensure, as regards their own activities and those ofthe that use them, more transparency in relation to:traders
a) information required by consumer law (e.g. the contact details of the supplier, the maincharacteristics of products, the total price including delivery charges, and consumers' rights,such as the right of withdrawal)?"Trader" is any natural or legal person using an online platform for business or professional purposes. Traders are in
particular subject to EU consumer law in their relations with consumers.
YesNoI don't know
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b) information in response to a search query by the user, in particular if the displayed results aresponsored or not?
YesNoI don't know
c) information on who the actual supplier is, offering products or services on the platformYesNoI don't know
d) information to discourage misleading marketing by professional suppliers (traders), includingfake reviews?
YesNoI don't know
e) is there any additional information that, in your opinion, online platforms should be obliged todisplay?500 character(s) maximum
Have you experienced that information displayed by the platform (e.g. advertising) has beenadapted to the interest or recognisable characteristics of the user?
YesNoI don't know
Do you find the information provided by online platforms on their terms of use sufficient andeasy-to-understand?
YesNo
*What type of additional information and in what format would you find useful? Please brieflyexplain your response and share any best practice you are aware of.
1500 character(s) maximum
We do not take a position on specific formats or information that should
be included, but believe that general principles of consumer protection
and informed consent should apply, and that unfair and deceptive
practices should be prohibited.
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Do you find reputation systems (e.g. ratings, reviews, certifications, trustmarks) and other trustmechanisms operated by online platforms are generally reliable?
YesNoI don't know
What are the main benefits and drawbacks of reputation systems and other trust mechanismsoperated by online platforms? Please describe their main benefits and drawbacks.1500 character(s) maximum
USE OF INFORMATION BY ONLINE PLATFORMS
In your view, do online platforms provide sufficient and accessible information with regard to:
a) the personal and non-personal data they collect?YesNoI don't know
b) what use is made of the personal and non-personal data collected, including trading of thedata to other platforms and actors in the Internet economy?
YesNoI don't know
c) adapting prices, for instance dynamic pricing and conditions in function of data gathered onthe buyer (both consumer and trader)?
YesNoI don't know
Please explain your choice and share any best practices that you are aware of.1500 character(s) maximum
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Please share your general comments or ideas regarding the use of information by onlineplatforms3000 character(s) maximum
We reiterate our belief that general principles of consumer protection
and informed consent should be touchstones in appraising data collection
and usage disclosures by online platforms. We note that formalistic fine
print disclosures may meet technical requirements of disclosure without
sufficiently educating consumers about how their data is collected or
used.
RELATIONS BETWEEN PLATFORMS AND SUPPLIERS/TRADERS/APPLICATIONDEVELOPERS OR HOLDERS OF RIGHTS IN DIGITAL CONTENT
[A1] Are you a holder of rights in digital content protected by copyright, which is used on anonline platform?
YesNo
As a holder of rights in digital content protected by copyright have you faced any of the followingcircumstances:
An online platform such as a video sharing website or an online content aggregator uses myprotected works online without having asked for my authorisation.
YesNo
An online platform such as a video sharing website or a content aggregator refuses to enter intoor negotiate licensing agreements with me.
YesNo
An online platform such as a video sharing website or a content aggregator is willing to enterinto a licensing agreement on terms that I consider unfair.
YesNo
An online platform uses my protected works but claims it is a hosting provider under Article 14of the E-Commerce Directive in order to refuse to negotiate a licence or to do so under theirown terms.
YesNo
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Is there a room for improvement in the relation between platforms and suppliers using theservices of platforms?
No, the present situation is satisfactory.Yes, through market dynamics.Yes, through self-regulatory measures (codes of conducts / promotion of best practices).Yes, through regulatory measures.Yes, through the combination of the above.
Are you aware of any dispute resolution mechanisms operated by online platforms, orindependent third parties on the business-to-business level mediating between platforms andtheir suppliers?
YesNo
Please share your experiences on the key elements of a well-functioning dispute resolutionmechanism on platforms1500 character(s) maximum
We are unaware of any dispute mechanisms as described in this question.
However we wish to expand on our answer regarding room for improvement
in relations between platforms and users. We note that platforms can
better serve their users by providing mechanisms of recourse and due
process when users is are subject to inappropriate or abusive takedown
notices. Given the rise of automated filtering and takedown mechanisms
that favor unsupported claims of large rightsholders over the rights of
smaller scale users, such as ourselves, we support regulatory regimes
that encourage the recognition of the rights of smaller scale users on
equal footing with those of large media companies.
We do note that a proper functioning dispute resolution mechanism would
give proper recognition to the limitations and exceptions to any rights
being asserted by a party against a user of a platform.
CONSTRAINTS ON THE ABILITY OF CONSUMERS AND TRADERS TO MOVE FROM ONEPLATFORM TO ANOTHER
Do you see a need to strengthen the technical capacity of online platforms and address possibleother constraints on switching freely and easily from one platform to another and move userdata (e.g. emails, messages, search and order history, or customer reviews)?
YesNo
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If you can, please provide the description of some best practices (max. 5)Name of the online platform Description of the best practice (max. 1500 characters)
1.2.3.4.5.
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Should there be a mandatory requirement allowing non-personal data to be easily extracted andmoved between comparable online services?
YesNo
Please share your general comments or ideas regarding the ability of consumers and traders tomove from one platform to another3000 character(s) maximum
As a general matter, platform portability is a positive feature for
consumers and competition. However, in two-sided markets where barriers
to multi-homing is low, platform portability is less of a concern. In
general, transparency as to what data consumers may export, and in what
formats, is helpful in allowing consumers to reach an informed decision
whether to use the platform.
In markets where dominance is high and the barriers to portability
reinforce that dominance, competition law provides an appropriate
framework of analysis.
ACCESS TO DATA
As a trader or a consumer using the services of online platforms did you experience any of thefollowing problems related to the access of data?
a) unexpectedly changing conditions of accessing the services of the platformsYesNo
b) unexpectedly changing conditions of accessing the Application Programming Interface of theplatform
YesNo
c) unexpectedly changing conditions of accessing the data you shared with or stored on theplatform
YesNo
d) discriminatory treatment in accessing data on the platformYesNo
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Would a rating scheme, issued by an independent agency on certain aspects of the platforms'activities, improve the situation?
YesNo
*Please explain your answer1500 character(s) maximum
It is unclear how an independent rating agency would help. As it stands,
many civil society and public interest organizations already monitor and
report on various benchmarks of consumer friendliness or hostility of a
range of platforms. For example, the Electronic Frontier Foundation has
a number of scorecards rating companies and platforms on their privacy
and disclosure practices (e.g.
https://www.eff.org/who-has-your-back-government-data-requests-2015).
Please share your general comments or ideas regarding access to data on online platforms3000 character(s) maximum
As an organization we have not directly experienced the problems
discussed above. Nevertheless, we are aware of instances where consumers
and others have experienced issues, such as the sudden loss of access to
data when governments have seized servers or websites, and being left
with little or no recourse (see e.g.
http://www.wired.com/2012/06/feds-megaupload-data/,
http://arstechnica.com/tech-policy/2012/05/waiting-on-the-riaa-feds-held
-seized-dajaz1-domain-for-months/).
Tackling illegal content online and the liability of onlineintermediaries
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Please indicate your role in the context of this set of questions
Terms used for the purposes of this consultation:
"Illegal content"
Corresponds to the term "illegal activity or information" used in Article 14 of the E-commerce Directive. The directive does
not further specify this term. It may be understood in a wide sense so as to include any infringement of applicable EU or
national laws and regulations. This could for instance include defamation, terrorism related content, IPR infringements,
child abuse content, consumer rights infringements, or incitement to hatred or violence on the basis of race, origin, religion,
gender, sexual orientation, malware, illegal online gambling, selling illegal medicines, selling unsafe products.
"Hosting"
According to Article 14 of the E-commerce Directive, hosting is the “storage of (content) that has been provided by the user
of an online service”. It may for instance be storage of websites on servers. It may also include the services offered by
online market places, referencing services and social networks.
"Notice"
Any communication to a hosting service provider that gives the latter knowledge of a particular item of illegal content that it
transmits or stores and therefore creates an obligation for it to act expeditiously by removing the illegal content or
disabling/blocking access to it.. Such an obligation only arises if the notice provides the internet hosting service provider
with actual awareness or knowledge of illegal content.
"Notice provider"
Anyone (a natural or legal person) that informs a hosting service provider about illegal content on the internet. It may for
instance be an individual citizen, a hotline or a holder of intellectual property rights. In certain cases it may also include
public authorities.
"Provider of content"
In the context of a hosting service the content is initially provided by the user of that service. A provider of content is for
instance someone who posts a comment on a social network site or uploads a video on a video sharing site.
individual usercontent providernotice providerintermediarynone of the above
Have you encountered situations suggesting that the liability regime introduced in Section IV ofthe E-commerce Directive (art. 12-15) has proven not fit for purpose or has negatively affectedmarket level playing field?
YesNo
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Do you think that the concept of a "mere technical, automatic and passive nature" of informationtransmission by information society service providers provided under recital 42 of the ECD issufficiently clear to be interpreted and applied in a homogeneous way, having in mind thegrowing involvement in content distribution by some online intermediaries, e.g.: video sharingwebsites?
YesNoI don't know
Please explain your answer.1500 character(s) maximum
We believe that this is clear concept. We note though that we believe
that it is clear that there is no tension between simultaneously being
an "online intermediary" and engaging in "content distribution", and
that this should be reflected in any regulations. Unless an intermediary
is actively creating content, in which case it may be treated as a
speaker, it is critical to shield intermediaries from liability for the
speech of others that transits or resides on that platforms. Any
reduction in the limitations of liability merely because the data
transiting or residing on the platform is "content", video or otherwise,
would stifle innovation, and chill speech, by discouraging platforms
from hosting or transiting speech acts. The existence of strong and
clear limitations on liability for platforms has been critical to the
flourishing of online platforms for user expression and speech.
Mere conduit/caching/hosting describe the activities that are undertaken by a service provider.However, new business models and services have appeared since the adopting of theE-commerce Directive. For instance, some cloud service providers might also be covered underhosting services e.g. pure data storage. Other cloud-based services, as processing, might fallunder a different category or not fit correctly into any of the existing ones. The same can applyto linking services and search engines, where there has been some diverging case-law atnational level. Do you think that further categories of intermediary services should beestablished, besides mere conduit/caching/hosting and/or should the existing categories beclarified?
YesNo
On the "notice"
Do you consider that different categories of illegal content require different policy approaches asregards notice-and-action procedures, and in particular different requirements as regards thecontent of the notice?
YesNo
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Do you think that any of the following categories of illegal content requires a specific approach:
Illegal offer of goods and services (e.g. illegal arms, fake medicines, dangerous products,unauthorised gambling services etc.)Illegal promotion of goods and servicesContent facilitating phishing, pharming or hackingInfringements of intellectual property rights (e.g. copyright and related rights, trademarks)Infringement of consumer protection rules, such as fraudulent or misleading offersInfringement of safety and security requirementsRacist and xenophobic speechHomophobic and other kinds of hate speechChild abuse contentTerrorism-related content (e.g. content inciting the commitment of terrorist offences and
training material)DefamationOther:
Please explain what approach you would see fit for the relevant category.1000 character(s) maximum
It is important to distinguish between those categories of content that
are categorically illegal by the nature of their content (child abuse
content, promotion of illegal goods or services, etc.), and those whose
legality hinges on authorization or nature of use. This is particularly
true in the case of intellectual property rights, which limited to
certain categories of use. An automated filter cannot tell apart a use
of a trademark that is not confusing, or not a use in commerce, nor can
it tell apart uses of an expressive work that fall afoul of an exclusive
copyright, and those that are either authorized or do not require
authorization. This kind of subjective analysis should not be conducted
at mass scale, and should be subject to mechanisms that treat the claims
and rightsholders and the rights of users and consumers on equal
footing, rather than presuming rightsholder claims as sufficient.
On the "action"
Should the content providers be given the opportunity to give their views to the hosting serviceprovider on the alleged illegality of the content?
YesNo
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*Please explain your answer1500 character(s) maximum
The rights of content providers are as important and valid as the claims
of rightsholders. Online platforms are critical conduits of speech and
expression, and any attempt to have speech and expression removed from
them should be subject to a balanced review, especially if the review is
occurring outside of courts, where due process rights are better
protected.
This is especially true in the case of intellectual property rights and
defamation, as these claims have a history of being wielded without
appropriate consideration of the content providers rights (e.g.
http://www.npr.org/sections/thetwo-way/2015/09/14/440363919/dancing-baby
-wins-copyright-case) and to suppress criticism (see e.g.
http://blog.ericgoldman.org/archives/2015/09/big-fee-shift-in-unsuccessf
ul-copyright-lawsuit-to-suppress-unflattering-photo-katz-v-chevaldina.ht
m).
Where an act of speech or expression is challenged via a takedown
mechanism, it is appropriate and necessary that the content provider be
given an opportunity to address the challenge before their speech is
suppressed. At a minimum, content providers should be notified of
challenged, and be given the opportunity to counter-challenge and have
their content reinstated.
If you consider that this should only apply for some kinds of illegal content, please indicatewhich one(s)1500 character(s) maximum
Again we note that some acts must be judged in the appropriate factual
context to determine whether violations have occurred. These acts are
also generally tortious, and give rise to civil harms, e.g. in the case
of copyrights, and therefore suppression of expression and speech on the
basis of an asserted violation is not appropriate, as damages can be
recovered at a later date by the claimant.
In other cases, where the activity rises to the level of criminal acts,
criminal due process considerations apply.
Should action taken by hosting service providers remain effective over time ("take down andstay down" principle)?
YesNo
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Please explain
It is unclear what "remain effective over time" means in a practical
sense. A protected work may be used in many different ways, some which
violate a right, and many which don't.
A stay down principle cannot be applied at a content level, as a
hosting provider is not in a position by itself to determine whether any
one instance of a piece of content's use is a violation of a right or
not.
Applying a stay down principle at the user level already exists in the
form of repeat infringer policies that bar repeat violators of rights
from platforms.
Furthermore, notwithstanding the above concerns, a stay down principle
is effectively an duty to actively monitor, which contradicts Article 15
of the E-Commerce Directive.
On duties of care for online intermediaries:
Recital 48 of the Ecommerce Directive establishes that "[t]his Directive does not affect thepossibility for Member States of requiring service providers, who host information provided byrecipients of their service, to apply duties of care, which can reasonably be expected from themand which are specified by national law, in order to detect and prevent certain types of illegalactivities". Moreover, Article 16 of the same Directive calls on Member States and theCommission to encourage the "drawing up of codes of conduct at Community level by trade,professional and consumer associations or organisations designed to contribute to the properimplementation of Articles 5 to 15". At the same time, however, Article 15 sets out a prohibitionto impose "a general obligation to monitor".
(For online intermediaries): Have you put in place voluntary or proactive measures to removecertain categories of illegal content from your system?
YesNo
Do you see a need to impose specific duties of care for certain categories of illegal content?YesNoI don't know
Please specify for which categories of content you would establish such an obligation.1500 character(s) maximum
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Please specify for which categories of intermediary you would establish such an obligation1500 character(s) maximum
Please specify what types of actions could be covered by such an obligation1500 character(s) maximum
Do you see a need for more transparency on the intermediaries' content restriction policies andpractices (including the number of notices received as well as their main content and the resultsof the actions taken following the notices)?
YesNo
Should this obligation be limited to those hosting service providers, which receive a sizeableamount of notices per year (e.g. more than 1000)?
YesNo
Do you think that online intermediaries should have a specific service to facilitate contact withnational authorities for the fastest possible notice and removal of illegal contents that constitutea threat for e.g. public security or fight against terrorism?
YesNo
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Please share your general comments or ideas regarding the liability of online intermediaries andthe topics addressed in this section of the questionnaire.5000 character(s) maximum
Strong limitations of liability on intermediaries, such as those found
in 17 U.S.C. §512 of the US copyright law, and §230 of the
Communications Decency Act, are pillars of the modern internet.
Intermediary liability protections are fundamental to protecting and
promoting freedom of speech and expression online. Intermediaries are
the modes of communication and expression that convey the public's
communication and expression. Limitations on liability ensure that
platforms give individual speakers the broadest freedom to speak.
Removing liability protections from platforms would convert them to
gatekeepers with the power (and duty) to choose who may speak. This
would be a fundamental departure from the practices that have led to the
flourishing and growth of myriad platforms. It is also worth noting that
removing liability protections would not necessarily just have a limited
affect. Liability is a strong incentive to adopt default practices that
harm the free flow of speech and expression.
We urge the Commission to take caution and not deputize platforms to act
as one-sided courts and pronounce judgment on the speech acts of the
public without appropriate due process protections and safeguards.
Data and cloud in digital ecosystems
FREE FLOW OF DATA
ON DATA LOCATION RESTRICTIONS
In the context of the free flow of data in the Union, do you in practice take measures to make aclear distinction between personal and non-personal data?
YesNoNot applicable
Have restrictions on the location of data affected your strategy in doing business (e.g. limitingyour choice regarding the use of certain digital technologies and services?)
YesNo
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Do you think that there are particular reasons in relation to which data location restrictions are orshould be justifiable?
YesNo
*What kind(s) of ground(s) do you think are justifiable?National securityPublic securityOther reasons:
*Please explain
While there may be reasons for restricting the availability of certain
forms of information (including personally identifiable information), as
a general matter, data localization requirements, especially for
commercial data, are inconsistent with the fundamental nature and
operation of placeless Internet.
ON DATA ACCESS AND TRANSFER
Do you think that the existing contract law framework and current contractual practices are fit forpurpose to facilitate a free flow of data including sufficient and fair access to and use of data inthe EU, while safeguarding fundamental interests of parties involved?
YesNo
In order to ensure the free flow of data within the European Union, in your opinion, regulatingaccess to, transfer and the use of non-personal data at European level is:
NecessaryNot necessary
When non-personal data is generated by a device in an automated manner, do you think that itshould be subject to specific measures (binding or non-binding) at EU level?
YesNo
*
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Please share your general comments or ideas regarding data access, ownership and use5000 character(s) maximum
With respect to data access and use, we encourage the Commission to
consider what it means for consumers to have more and more of their data
stored "in the cloud" - either directly (e.g. cloud backups, lockers, or
storage), or seamlessly (e.g. through syncing services like Dropbox). As
noted previously regarding the Megaupload case, the service was
shuttered and its servers seized, cutting off users from their own
stored data because it resided physically on the same disks as data that
allegedly infringed copyright.
With regard to data ownership, we also encourage the Commission to
examine and consider issues of owning digital content. As more and more
content is "sold" only in name, subject to terms and conditions that
specify that the transaction is a "license" and not a "sale", with the
result that consumer expectations with respect to their rights in their
content may not match reality.
ON DATA MARKETS
What regulatory constraints hold back the development of data markets in Europe and howcould the EU encourage the development of such markets?3000 character(s) maximum
The clearest steps that the EU could take to encourage the development
of data markets, which we interpret to mean businesses based on cloud
computing and storage services, would be to adopt strong limitations on
liability that apply to providers of such services. The U.S. model as
embodied in §230 of the Communications Decency Act is instructive, as it
ensures that intermediaries are not held responsible for the contents of
the data that transits or is hosted on their systems.
Uniform treatment of services across the EU will also encourage services
from offering their services across the continent rather than only those
jurisdictions where appropriate limitations on liability are already in
place.
ON ACCESS TO OPEN DATA
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Do you think more could be done to open up public sector data for re-use in addition to therecently revised EU legislation (Directive 2013/37/EU)?Open by default means: Establish an expectation that all government data be published and made openly re-usable by
default, while recognising that there are legitimate reasons why some data cannot be released.
Introducing the principle of 'open by default'[1]Licensing of 'Open Data': help persons/ organisations wishing to re-use public sector
information (e.g., Standard European License)Further expanding the scope of the Directive (e.g. to include public service broadcasters,
public undertakings);Improving interoperability (e.g., common data formats);Further limiting the possibility to charge for re-use of public sector informationRemedies available to potential re-users against unfavourable decisionsOther aspects?
Do you think that there is a case for the opening up of data held by private entities to promote itsre-use by public and/or private sector, while respecting the existing provisions on dataprotection?
YesNo
*Under what conditions?in case it is in the public interestfor non-commercial purposes (e.g. research)other conditions
*Please explain3000 character(s) maximum
We support the application of open data/licensing requirements on
publicly funded works, including published research, educational
sources, and other works, where the rights in the work are subsequently
held by a private entity.
ON ACCESS AND REUSE OF (NON-PERSONAL) SCIENTIFIC DATA
Do you think that data generated by research is sufficiently, findable, accessible identifiable, andre-usable enough?
YesNo
Do you agree with a default policy which would make data generated by publicly fundedresearch available through open access?
YesNo
*
*
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ON LIABILITY IN RELATION TO THE FREE FLOW OF DATA AND THE INTERNET OFTHINGS
As a provider/user of Internet of Things (IoT) and/or data driven services and connectedtangible devices, have you ever encountered or do you anticipate problems stemming fromeither an unclear liability regime/non –existence of a clear-cut liability regime?The "Internet of Things" is an ecosystem of physical objects that contain embedded technology to sense their internal
statuses and communicate or interact with the external environment. Basically, Internet of things is the rapidly growing
network of everyday objects—eyeglasses, cars, thermostats—made smart with sensors and internet addresses that create
a network of everyday objects that communicate with one another, with the eventual capability to take actions on behalf of
users.
YesNoI don't know
If you did not find the legal framework satisfactory, does this affect in any way your use of theseservices and tangible goods or your trust in them?
YesNoI don't know
Do you think that the existing legal framework (laws, or guidelines or contractual practices) is fitfor purpose in addressing liability issues of IoT or / and Data driven services and connectedtangible goods?
YesNoI don't know
As a user of IoT and/or data driven services and connected tangible devices, does the presentlegal framework for liability of providers impact your confidence and trust in those services andconnected tangible goods?
YesNoI don't know
In order to ensure the roll-out of IoT and the free flow of data, should liability issues of theseservices and connected tangible goods be addressed at EU level?
YesNoI don't know
ON OPEN SERVICE PLATFORMS
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What are in your opinion the socio-economic and innovation advantages of open versus closedservice platforms and what regulatory or other policy initiatives do you propose to accelerate theemergence and take-up of open service platforms?3000 character(s) maximum
PERSONAL DATA MANAGEMENT SYSTEMS
The following questions address the issue whether technical innovations should be promotedand further developed in order to improve transparency and implement efficiently therequirements for lawful processing of personal data, in compliance with the current and futureEU data protection legal framework. Such innovations can take the form of 'personal data cloudspaces' or trusted frameworks and are often referred to as 'personal data banks/stores/vaults'.
Do you think that technical innovations, such as personal data spaces, should be promoted toimprove transparency in compliance with the current and future EU data protection legalframework? Such innovations can take the form of 'personal data cloud spaces' or trustedframeworks and are often referred to as 'personal data banks/stores/vaults'?
YesNoI don't know
EUROPEAN CLOUD INITIATIVE
What are the key elements for ensuring trust in the use of cloud computing services byEuropean businesses and citizens"Cloud computing" is a paradigm for enabling network access to a scalable and elastic pool of shareable physical or virtual
resources with self-service provisioning and administration on-demand. Examples of such resources include: servers,
operating systems, networks, software, applications, and storage equipment.
Reducing regulatory differences between Member StatesStandards, certification schemes, quality labels or sealsUse of the cloud by public institutionsInvestment by the European private sector in secure, reliable and high-quality cloud
infrastructures
As a (potential) user of cloud computing services, do you think cloud service providers aresufficiently transparent on the security and protection of users' data regarding the services theyprovide?
YesNoNot applicable
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*What information relevant to the security and protection of users' data do you think cloudservice providers should provide?
Accountability and transparency about a number of practices is key.
These include data collection and usage, data security practices, and
privacy protections. Again, principles of consumer protection, informed
consent, and unfair and deceptive practices should by the guide to
determining what information is relevant in order to ensure educated
decision making my consumers.
As a (potential) user of cloud computing services, do you think cloud service providers aresufficiently transparent on the security and protection of users' data regarding the services theyprovide?
YesNoNot applicable
As a (potential) user of cloud computing services, do you agree that existing contractualpractices ensure a fair and balanced allocation of legal and technical risks between cloud usersand cloud service providers?
YesNo
What would be the benefit of cloud computing services interacting with each other (ensuringinteroperability)
Economic benefitsImproved trustOthers:
What would be the benefit of guaranteeing the portability of data, including at European level,between different providers of cloud services
Economic benefitsImproved trustOthers:
*
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Have you encountered any of the following contractual practices in relation to cloud basedservices? In your view, to what extent could those practices hamper the uptake of cloud basedservices? Please explain your reasoning.
Never(Y[es]orN[no])
Sometimes (Y / N)
Often(Y / N)
Always(Y / N)
Why (1500 charactersmax.)?
Difficulties with negotiating contractualterms and conditions for cloud servicesstemming from uneven bargainingpower of the parties and/or undefinedstandardsLimitations as regards the possibility toswitch between different cloud serviceprovidersPossibility for the supplier tounilaterally modify the cloud serviceFar reaching limitations of thesupplier's liability for malfunctioningcloud services (including depriving theuser of key remedies)Other (please explain)
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What are the main benefits of a specific European Open Science Cloud which would facilitateaccess and make publicly funded research data re-useable?
Making Science more reliable by better quality assurance of the dataMaking Science more efficient by better sharing of resources at national and international
levelMaking Science more efficient by leading faster to scientific discoveries and insightsCreating economic benefits through better access to data by economic operatorsMaking Science more responsive to quickly tackle societal challengesOthers
Would model contracts for cloud service providers be a useful tool for building trust in cloudservices?
YesNo
Would your answer differ for consumer and commercial (i.e. business to business) cloudcontracts?
YesNo
Please share your general comments or ideas regarding data, cloud computing and the topicsaddressed in this section of the questionnaire5000 character(s) maximum
The collaborative economy
The following questions focus on certain issues raised by the collaborative economy and seekto improve the Commission's understanding by collecting the views of stakeholders on theregulatory environment, the effects of collaborative economy platforms on existing suppliers,innovation, and consumer choice. More broadly, they aim also at assessing the impact of thedevelopment of the collaborative economy on the rest of the economy and of the opportunitiesas well as the challenges it raises. They should help devising a European agenda for thecollaborative economy to be considered in the context of the forthcoming Internal MarketStrategy. The main question is whether EU law is fit to support this new phenomenon andwhether existing policy is sufficient to let it develop and grow further, while addressing potentialissues that may arise, including public policy objectives that may have already been identified.
Terms used for the purposes of this consultation:
"Collaborative economy"
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For the purposes of this consultation the collaborative economy links individuals and/or legalpersons through online platforms (collaborative economy platforms) allowing them to provideservices and/or exchange assets, resources, time, skills, or capital, sometimes for a temporaryperiod and without transferring ownership rights. Typical examples are transport servicesincluding the use of domestic vehicles for passenger transport and ride-sharing,accommodation or professional services.
"Traditional provider"
Individuals or legal persons who provide their services mainly through other channels, withoutan extensive involvement of online platforms.
"Provider in the collaborative economy"
Individuals or legal persons who provide the service by offering assets, resources, time, skillsor capital through an online platform.
"User in the collaborative economy"
Individuals or legal persons who access and use the transacted assets, resources, time, skillsand capital.
Please indicate your role in the collaborative economyProvider or association representing providersTraditional provider or association representing traditional providersPlatform or association representing platformsPublic authorityUser or consumer association
Which are the main risks and challenges associated with the growth of the collaborativeeconomy and what are the obstacles which could hamper its growth and accessibility? Pleaserate from 1 to 5 according to their importance (1 – not important; 5 – very important).
- Not sufficiently adapted regulatory framework12345
- Uncertainty for providers on their rights and obligations12345
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- Uncertainty for users about their rights and obligations12345
- Weakening of employment and social rights for employees/workers12345
- Non-compliance with health and safety standards and regulations12345
- Rise in undeclared work and the black economy12345
- Opposition from traditional providers12345
- Uncertainty related to the protection of personal data12345
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- Insufficient funding for start-ups12345
- Other, please explain
How do you consider the surge of the collaborative economy will impact on the different forms ofemployment (self-employment, free lancers, shared workers, economically dependent workers,tele-workers etc) and the creation of jobs?
Positively across sectorsVaries depending on the sectorVaries depending on each caseVaries according to the national employment lawsNegatively across sectorsOther
Do you see any obstacle to the development and scaling-up of collaborative economy acrossborders in Europe and/or to the emergence of European market leaders?
YesNo
Do you see a need for action at European Union level specifically to promote the collaborativeeconomy, and to foster innovation and entrepreneurship in its context?
YesNo
What action is necessary regarding the current regulatory environment at the level of the EU,including the Services Directive, the E-commerce Directive and the EU legislation on consumerprotection law?
No change is requiredNew rules for the collaborative economy are requiredMore guidance and better information on the application of the existing rules is requiredI don't know what is the current regulatory environment
Submission of questionnaire
End of public consultation
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PL_Wprowadzenie (/eusurvey/files/df9e1828-bbd0-4e4a-90bb-ec45a8bf46da)
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32
RO_Declarație de confidențialitate (/eusurvey/files/25c135c6-ce01-4081-a83e-53e86086797e)
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SV_Regler för skydd av personuppgifter (/eusurvey/files/0d8275b2-8344-4895-8c09-51d075671061)
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